Shoaib (Migration)

[2019] AATA 4791

Shoaib (Migration) [2019] AATA 4791 (25 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Shoaib

CASE NUMBER:  1830441

HOME AFFAIRS REFERENCE(S):           BCC2018/3717781

MEMBER:Peter Booth

DATE:25 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 25 October 2019 at 12:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – medical condition – timing of diagnosis – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 October 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 23 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed .

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The delegate’s decision dated 11 October 2018 found that the applicant was not enrolled in a course of registered study after 22 June 2018. The applicant affirmed the correctness of this finding. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·     The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

    The applicant gave evidence that he arrived in Australia in “May 2017” as the holder of a student (subclass 500) Visa. His intended field of study was mechanical engineering, commencing with a diploma course and then to a bachelor’s degree. The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia.

    ·     The extent of compliance with visa conditions

    The applicant affirmed that he was not enrolled from 22 June 2018 until 2 September 2019.

    ·     Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

    The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    ·     Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    The applicant’s evidence at the hearing was vague and he was prone to emotional interludes. Nonetheless relevantly he said that he abandoned the Diploma of mechanical engineering course and commenced a Diploma in business in July 2017. He completed the course but said that he did not commence the Master of accounting course which he was due to commence thereafter. He said that he was “feeling stress and anxiety” and that his “health was not good” and that he had “[Symptom 1]” he said that he did not commence the accounting course and went to see a medical practitioner. Thereafter there were, apparently, investigations which he described in fairly vague terms. However it is tolerably clear that he had an [investigation] of his [Body Part 1], although he did not know the results. This gave rise to a CT scan, although he did not know the results. He was informed by a medical practitioner that he may have [Medical Condition 1]. At some point he was advised to attend the medical emergency department of a hospital and did so. Further examinations were conducted including an ultrasound of his [Body Part 2] and he was informed that he had [Medical Condition 1]. He said he stayed in hospital for 14 days and that, in part, the diagnosis was the he had [specified condition] which needed to be [treated]. This appeared to be related to the diagnosis of [Medical Condition 1]. He had an invasive procedure to remove [cause of condition] from his [Body Part 2]. He said that this was in October 2018. After being discharged he returned home and undertook a course of pharmaceuticals to treat [Medical Condition 1]. He said that this course of medication took between six and nine months and that in approximately July 2019 he completed the medication. He said that he did not return to study during this period. In answer to a question from Tribunal he said that he was not bedridden but that he had stayed at home and that he “sometimes went out with friends”. The applicant said that he had informed his course provider of his illness in about May 2019, although in answers to some questions he may have informed the course provider prior to that time. He said that he applied for a deferral in January 2019 and which was granted. He did not have any documents to verify this assertion but said that he would produce them to the Tribunal by the close of business on 23 October 2019. The tribunal asked the applicant what medical evidence he relied upon. He was unable to respond in a meaningful way. In answer to further questions in the Tribunal he agreed that he had received notice of the intention to cancel his Visa on 6 September 2018, that he was hospitalised on 26 October 2018 and that he did not tell the Department of the delegate, prior to the cancellation decision, of the [Medical Condition 1] diagnosis or treatment. He produced a confirmation of enrolment document which demonstrated that he is enrolled in the Bachelor of accounting degree and that he has commence those studies on 2 September 2019. The Tribunal enquired whether there was any other reason why the applicant was not able to study after June 2018. He said that he was under “immense stress” and not able to attend classes. In answer to a series of questions from the Tribunal, the applicant said that he relied on a psychiatrist report dated 10 October 2019 and a medical report dated 15 October 2019 both of which are on the Tribunal file. The Tribunal informed the applicant that they would be taken into account. The applicant’s migration agent, in response to questions from the Tribunal confirmed that his client relied on evidence of a medical procedure dated 2 November 2018, a radiology report dated 24 October 2018 and a short medical certificate dated 15 October 2019. Further that his client relied on the psychiatrist report dated 10 October 2019. The technical report dated 2 November 2018, makes it clear that the applicant underwent an invasive procedure to investigate and remove [cause of condition] in or around [Body Part 2]. The radiologist report dated 24 October 2018, again in highly technical language, appears to report a “[specified condition]”. The short medical report dated 15 October 2019 is in a more narrative form. That report confirms that the applicant was “diagnosed with [Medical Condition 1] in 2018. The management included [Medical Condition 1] treatment for nine months and [extraction] from around [Body Part 2] for testing. During this stressful period he had no family support and required psychological input. He carried the burden of this new diagnosis and regular hospital visits on his own and therefore was unable to follow up on his studies”. The Tribunal finds that the diagnosis of [Medical Condition 1] and invasive procedure occurred in October 2018.This is also consistent with the applicants evidence that the 9 month treatment concluded in July 2019. The psychological report dated 10 October 2019 also refers to several medical issues including “[Symptom 1]” and a diagnosis of “[Medical Condition 1]” and a “traumatic hospital experience which led to him not being able to continue with university studies at that point”. The Tribunal notes that this report is written by a person other than the applicant’s treating clinical psychologist who had “to take personal leave”. Further the applicant attended for sessions with a psychologist “commencing in March 2019”. Lastly the report makes no findings or conclusions that the applicant was unwell in June 2018 and could not study at that time. The Tribunal gives this report little weight. The Tribunal does not accept that the applicant had significant health issues at or around the time of the decision to cancel his Visa. Further, there does not appear to be any evidence of medical investigation around the time that he was not enrolled namely 22 June 2018. Whilst the nature of his subsequent medical complaints are significant the Tribunal has no evidence that they were at least in part relevant to him not being able to attend the studies or were at all contemporaneous. It appears that he was troubled and homesick at around the period of June 2018. The Tribunal is not convinced by this explanation for several reasons. First he gave evidence that he was unable to commence the Diploma of mechanical engineering because of this issue but is not apparent that he did anything about it. He went on to say that his parents recommended he relocate to Melbourne from Sydney in order to have the companionship of a cousin. He did not do that but rather stayed in Sydney and changed to a different course. Apparently his cousin introduced him to another person although that person was a stranger to the applicant. The explanation therefore of mental health issues contributing to an inability to study is less than convincing. Nonetheless the nature of the medical condition satisfies the tribunal that during the latter part of 2018 the applicant was preoccupied with medical matters beyond his control. However it is not satisfied that these matters were the reason for not continuing his studies in June 2018.Importantly there is no evidence linking the observed [Symptom 1] in his [Body Part 1] to the subsequent diagnosis of [Medical Condition 1]. After the conclusion of the hearing the applicant provided several documents which were relevant to his assertion of a deferral of the bachelor of accounting course. A letter dated 15 February 2019 from the course provider confirms that he was granted a deferral of the course from 21 January 2019 to 3 May 2019.The Tribunal accepts this evidence but it is not relevant to the issue of why the applicant was not enrolled from 22 June 2018. After the conclusion of the hearing the applicant’s migration agent also provided a further psychological counselling report dated 10 July 2017. This report discusses various matters including that the applicant was “homesick and got very stressed and depressed missing his family and friends”. Apparently it was prepared for the purposes of supporting “his request for a release letter”. The Tribunal notes that it does not explain the applicant’s state of mind in June 2018 nor does it conclude that the applicant was unable to study in June 2018. The Tribunal gives this evidence little weight. Also, after conclusion of the hearing, another report from a psychologist dated 14 September 2018 was produced. In this report the psychologist after referring to the applicant having been “investigated for [Medical Condition 2] in the [Body Part 1] region” concludes that “it is my clinical impression that Mr Shoaib’s periods of functional incapacity due to his mental health condition hampered his ability to meet his Visa requirements”. The Tribunal notes that this report does not conclude that the applicant could not undertake study in July 2018. It is given little weight. In the circumstances the Tribunal does not conclude that the failure of the applicant to comply with the Visa condition was beyond his control.

    ·     Past and present behaviour of the visa holder towards the department

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Whether there would be consequential cancellations under s.140

    The Tribunal was provided with no evidence on this point and gives it little weight.

    ·     Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

    The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    ·     Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Any other relevant matters.

    There was no evidence of any other matters and the Tribunal gives this factor no weight.

12. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

13. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Peter Booth
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.